Tuesday, February 21, 2017

Power of Attorney, Guardian, Conservator, Personal Representative...What's the Difference?

When someone becomes sick, a relative often handles their affairs for them. But there are different titles or roles that the caretaker can be acting under while managing the affairs. There are differences between the roles, but people often do not realize this.

Power of Attorney

A power of attorney (POA) is a document signed by an individual allowing another individual to manage a predefined set of affairs. The powers of the person acting as POA are limited to those matters set forth in the POA, and can extend no further. Our office typically drafts separate POAs for healthcare and general affairs. This allows for people to list separate individuals for these roles if they wish, as well as to allow for a bit of privacy.  

POAs can be durable or springing. A durable POA means that the document is effective immediately upon signing, and the POA could act immediately. A springing POA takes effect once the subject is declared incompetent. A doctor is the one that needs to declare the subject incompetent; and doctors are often loathe to do so. This can leave a gap in decision-making, bill paying, and handling of affairs. For this reason, a durable POA makes more sense for most people. Some clients are concerned about the POA being effective immediately. But ultimately, if you are trusting someone enough to handle your affairs should you need them to do so, you should trust them enough to not act when you don't need them to do so.

A POA is effective until revoked by the subject or until the death of the subject. After the death of a subject, a Personal Representative handles the affairs of the subject. The POA is no longer effective after death.

Guardian and/or Conservator

A guardian or conservator is a person appointed by a court to manage the affairs of the subject. His/her powers are limited by the court's grant of authority. Typical duties of the guardian or conservator include arranging for housing or care for the subject, paying bills, and handling property of the subject. For a lot of situations, the guardianship is indistinguishable in day to day practice from a POA. 

The Court can appoint either a guardian, or a conservator, or a guardian/conservator. Conservatorships are used when there are more significant assets at play. Guardianships are used when the subject's day to day affairs need to be managed. Both are sometimes needed and therefore appointed.

But the guardianship and/or conservatorship can only be terminated by the Court, rather than by the subject just revoking it. And the guardian/conservator has reporting requirements to the Court. This is an annual packet that has to be filed with the Court, with updates on the condition of the subject and his/her financial affairs. Other individuals can also participate in the guardianship/conservatorship proceedings by filing documents with the Court to be considered interested parties. Once an interested party, he/she is then entitled to notice about any hearings, as well as copies of documents filed with the Court. A guardianship proceeding provides for oversight of the affairs that is not found with a POA.

A guardianship/conservatorship is effective until terminated by the Court. It can be terminated by the Court because it is no longer needed, or due to the death of the subject. Guardians/conservators can also resign or be removed. A guardianship/conservatorship is no longer effective after death, and the guardian/conservator simply has final accounting type reports to submit to the Court.

Personal Representative

A personal representative is the person who handles the probate of the subject's estate after his/her death. This person is typically nominated in a Last Will and Testament, but then is appointed by the Court. A personal representative and an executor are the same thing, but personal representative is the term commonly used in practice now. 

The personal representative's duties are to carry out the directives of the Last Will and Testament, pay any final bills, and to wind up the final affairs of the subject. If there is no Last Will and Testament, then the Personal Representative's duties are dictated by state law. There are a whole host of documents that need to be filed with the Court in the probate proceedings, so most Personal Representatives choose to have an attorney assist them through the process.

Tuesday, February 7, 2017

Who's Who?! Simplifying the Roles of People Involved in Court

Sometimes it's pretty confusing trying to sort out who's who, and who does what in the court system and the justice system. This post isn't meant to be exhaustive, but simply a quick guide. If you have additional questions, please do not hesitate to contact us (or your own attorney if you're already represented by one).

Judge: The judge is an attorney licensed in the state. He or she is appointed by the Governor and then up for retention election in the district in which he/she serves. There are two types of judges that people commonly come into contact with, District Court Judges and County Court Judges. They each handle cases filed in their respective courts (District Court or County Court). The judge oversees jury trials, decides bench/court trials, and oversees and decides any other types of hearings that may be held. In addition to the judges in the District Court and County Court, there are also judges who serve on the Court of Appeals, Supreme Court, and Worker's Compensation Courts.

County Attorney: This is the prosecutor. He or she is a licensed attorney and is an elected official, although the county's board may appoint individuals to fill a term. He/she brings charges against people who have allegedly committed crimes. They also handle juvenile cases and file petitions and make allegations in these types of cases. The County Attorney also handles child support enforcement cases, other types of civil cases that may involve the county, and advises the county.

Deputy County Attorney: This is a licensed attorney that is hired by the County Attorney. He/she has any powers delegated by the County Attorney.

Public Defender: This is a licensed attorney and an elected official (although the county's board may appoint individuals to fill a term). He/she handles criminal defense work for those individuals who are indigent and cannot afford to hire an attorney of their own. Public defenders handle misdemeanors and felonies, and frequently are also contracted to handle juvenile delinquency cases as well. Public defenders represent their clients at no charge to the client. The county pays the public defender either through a salary or a contract.

Deputy Public Defender: This is a licensed attorney that is hired by the Public Defender. He/she has any powers delegated by the Public Defender. Deputy public defenders represent their clients at no charge to the client. The county pays the deputy public defender either through a salary or a contract.

Court Appointed Counsel: An individual licensed attorney can be appointed by the judge to represent an individual in a particular case. Court appointed attorneys are often appointed in criminal cases where the public defender has a conflict of interest, or in counties where no public defender's office exists. They are also appointed frequently to represent parents or juveniles in juvenile cases. Court appointed attorneys are paid by the county at no charge to the client.

Guardian ad Litem: This individual is appointed by the court and is a subset of Court Appointed Counsel. He/she represents the best interests of the client. This differs from the role of the person's attorney in that the attorney represents and pursues the stated interests of the client. The Guardian ad Litem, also known as a GAL, is generally paid for by the county at no charge to the client. However, in adoptions, custody cases, and guardianship cases, if the parties have the means to pay for the GAL's fees, the court sometimes requires reimbursement.

Privately Retained Counsel: An individual licensed attorney who is hired and paid for by the client. This occurs in all manner of civil, juvenile, and criminal cases, as well as situations that may not result in litigation in court.

Attorney: An individual who has attended law school and is licensed to practice law in a particular jurisdiction. Attorney is synonymous with lawyer.

Lawyer: An individual who has attended law school and is licensed to practice law in a particular jurisdiction. Lawyer is synonymous with attorney.

Bailiff: An individual who works for the judge and/or court system. He or she manages the judge's calendar and sets hearings, works with the attorneys, does dictation, prepares drafts for the judge, and similar types of clerical duties. This individual is not a licensed attorney, but is often very knowledgeable about the court system and the judge's preferences.

Magistrate: This individual is appointed by the presiding judge of a jurisdiction. He or she is not a licensed attorney, but may act in the role of a judge in certain limited proceedings, such as arraignments and bond setting. Their ability to handle certain types of hearings is controlled by the presiding judge of the jurisdiction and rules. The individual also oversees the County Court clerks and court staff.

Clerk: This term is a bit amorphous. In some counties it means the same thing as a bailiff. In other counties it refers more to the people who work in a front office, receive and copy pleadings and oversee the general workings of the court system.

Court Reporter: An individual who records verbatim what is said and prepares transcripts of what is said. Some court reporters are employed by the courts and handle court hearings, while others are freelance and handle depositions. This person is not a licensed attorney, but is required to obtain certification in court reporting.

I hope that this brief primer on the individuals involved in the court system has been helpful in sorting out the 'who's who.' Again, if you have questions, I would encourage you to reach out to your own attorney if you have one, or to our office.